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The Texas Heartbeat Act

Published October 18, 2021

On September 1st, the strictest abortion ban in the country went into effect in Texas.

On May 19, 2021, the Texas Heartbeat Act was signed by Governor Greg Abbott to take effect on September 1st. The Heartbeat act, Senate Bill 8, is the strictest abortion law in the country, banning abortions as early as six weeks into pregnancy. The reasoning behind this law stems from misconceptions surrounding fetal heartbeats and when they can first be detected. In an effort to circumvent the landmark Supreme Court Case Roe v. Wade (1973), the Heartbeat Act found a strategic loophole that empowers anti-abortionists and disempowers those who are directly impacted by the law. SB 8 is not the first state attempt at restricting abortions in the United States. In May 2019, Alabama signed one of the most extreme legislation on abortion since Roe v. Wade. The Human Life Protection Act banned abortion at any stage of pregnancy and was set for implementation in November 2019. However, in October U.S. District Judge Myron Thompson issued a preliminary injunction, arguing that its enforcement would be unconstitutional, thus blocking the action from moving forward. In the same month that SB 8 was enacted, the Supreme Court reviewed Mississippi's state law that bans abortions after 15 weeks. Since 1973, numerous red states, conservative organizations, and right leaning political parties have advocated against abortion and for more severe punishments. Yet, each law that attempted to restrict abortion was struck down by the Supreme Court until the Heartbeat Act.

SB 8, like other abortions measures, prohibits abortion after six weeks of pregnancy, which in itself puts people who may need abortions at a disadvantage. Whole Women’s Health has multiple clinics within Texas that provide abortions, and they found that around 85 to 90 percent of abortions occur after the first six weeks of pregnancy. This law imposes an almost complete ban on abortions; there are exceptions for medical emergencies, but there are none for rape or incest. In addition, the Texas state government will not enforce this restriction themselves. Instead, private citizens are permitted to sue abortions providers and anyone who aids with such procedures. This discourages medical professionals from facilitating post-six-week abortions as any member of the public who is under that impression can sue for a minimum of $10,000. This incentive will likely lead to an increasing number of frivolous lawsuits, as the plaintiff does not need to be directly harmed or impacted by the procedure to take anyone involved to court. Reproductive health organizations such as Planner Parenthood would typically challenge such legislation before its implementation. However, since SB 8 does not name state officials as the defendants, entities that are looking to challenge this law are forced to wait for a lawsuit. The Supreme Court reviewed the Heartbeat Act on September 1st as an emergency petition but ultimately did not block the law. In a vote of 5-4, the majority opinion did not grant a stay of execution but stressed that their decision did not assess the constitutionality of SB 8. The federal government, however, has not been silent. On September 9th, the United States Department of Justice filed a lawsuit against the state of Texas to strike down SB 8. The suit claims that SB 8 violates the Fourteenth Amendment and contradicts Supreme Court precedent.

Currently, SB 8 will go before a federal district court under Whole Woman’s Health v. Austin Reeve Jackson. Depending on the court’s decision, the case could be appealed, eventually reaching the Supreme Court for a decision on whether the bill is constitutional. Activists from both sides of the abortion movement eagerly await to see this controversial issue in the hands of the Supreme Court. This decision has the potential to reshape abortion and reproductive freedom in politics, determining whether private citizens retain the right to sue over abortions. For more information on the Texas Heartbeat Act, please refer to Senate Bill 8 available online. The Whole Woman’s Health v. Austin Reeve Jackson case in its entirety is also online for reference. Finally, to get involved and learn more about abortion rights, refer to Planned Parenthood’s article on abortion access or Texas Monthly’s Q&A article on SB 8